Why Jurors In Employment Cases Don’t Care About Evidence
“More than 50% of jurors’ time in deliberation is spent… talking about their jobs and related experiences”
Possibly more than in any other type of litigation, people feel uniquely qualified to sit as jurors on employment cases. In post-trial interviews and in trial research, jurors report intense emotional investment in employment cases. Job-related disputes activate a strong set of values and attitudes that shape juror perceptions and decision-making. Often, jurors’ perceptions of the case have little to do with the legal theories presented, or even what the lawyers believe is key evidence. Sometimes it seems jurors don’t really care about the evidence. More than 50% of jurors’ time in deliberation is spent not discussing the evidence, but talking about their own jobs and related experiences. Judges’ instructions and special interrogatories frequently have little impact.
In evaluating the strength of an employment case, one key factor to consider is the degree to which the specific issues are likely to support or challenge jurors’ perceptions of themselves and their environment. Since values, attitudes and experiences interact to form the concept of who we are, most of our choices and decisions are designed to reinforce and protect our self-concept, as opposed to, for example, some attorney’s legal theory. Choices ranging from whether to marry to what to wear are influenced by a strong desire to enhance, reinforce and protect the “self.” As a consequence, attitudes, values and experiences take priority among the factors jurors consider when making decisions.
Most people derive their self-concept from their jobs. A long time ago, people defined themselves by their hometown and family name. In today’s transient society, jobs are the surrogate community and extended family. We evaluate others and ourselves according to what others and we do and earn. At a cocktail party, people are typically about what they do rather than who they are. People who are unemployed or work in the home often experience a pronounced sense of alienation and depression. Even for those people who don’t derive intrinsic satisfaction from their work, the job defines the way they spend a great deal of their waking hours, sustains them, and brings routine and stability to their lives.
Losing a job, a negative change in job status, and perceived harassment in the workplace are all quite traumatic. Research shows losing a job is the psychological equivalent to divorce and even the death of a close relative. Retirement brings stress, illness and death to many who can’t survive without their roots. One loses a significant piece of identity when losing a job.
At some level, most people fear losing their jobs. Many have a close friend or relative who has experienced a serious problem at work. As a consequence, people who sit on juries find it rather easy to identify with the fear, anguish and humiliation plaintiffs report due to unfair treatment at work, no matter how exaggerated or baseless they appear to defense attorneys. Even for jurors who have been fortunate enough never to experience a layoff, demotion, discrimination or other problems, employment cases tend to raise anxiety over the stability of their own work situation.
Exploit The “Self” Principal At Trial
Effective trial attorneys recognize and exploit the link between self-concept and job-related issues. During voir dire, they spend more time listening than talking to jurors about their negative and positive experiences in the workplace, feelings about the stability and fairness of their current job situation, and fundamental attitudes and values toward employer-employee relations. By doing this, attorneys gain insight into what these jurors think and feel about themselves. Often, these insights run counter to attorney expectations and biases.
In a wrongful termination case involving the firing of a long-term employee who operated a bit too autonomously, for example, the defense team believed a “good” juror was a long-term employee who believed in company loyalty. These individuals were expected to identify with the company’s position on the problems caused by employees unwilling or unable to follow rules and procedures.
Pre-trial research demonstrated that these “good” jurors were actually quite dangerous. Long-term, loyal employees did, in fact, identify with the company’s motivation, but not with its actions. Loyal employees tend to believe a company owes them something extra for being loyal. They also tend to have latent fear over their lack of options if they were to lose their jobs prematurely and be thrust into a job market in which they may not fare so well. These jurors did not feel the company had tried hard enough to resolve the situation with the plaintiff. They became angry over what they saw as a violation of the trust between loyal employee and employer. The anger translated into a desire to punish. This information was quite helpful to have in advance of trial.
Effective opening statements, witness testimony and closing arguments also take advantage of the importance of self-concept in employment disputes. Plaintiff attorneys build themes on what the job means to the plaintiff personally, and the impact on lifestyle and family. The economic consequences are not overemphasized. They exploit the fear many have about lack of control over job security by portraying plaintiffs as individuals with little input and control, and their employers as powerful, controlling and capricious.
On the other hand, because the job self-concept link is so important, jurors expect employees to behave and protect their jobs. Jurors find it difficult to be sympathetic toward plaintiffs who have the knowledge and ability to perform well, but don’t. Jurors are then more motivated to find alternative reasons for the plaintiff’s claims.
Remember That Jurors Have High Standards
Defense attorneys often recognize that before jurors will be psychologically ready to fully appreciate evidence such as poor job performance by the plaintiff, they must first be reassured about the company’s true position on discrimination, for example. For many jurors, the prospect of an unfair employer presents a threat to the “self,” and the psychological burden of proof is on the defendant to demonstrate that the company’s motivation and standards are consistent with the expectations of the jurors.
Jurors hold employers to very high, sometimes unattainable standards when it comes to disciplining, demoting, firing and protecting employees. Jurors expect clear, written policy on anything that affects employees. If there is no written policy, the defendant is in big trouble. If there is a policy that wasn’t followed, it gets worse. Jurors expect clear, fair, consistent performance evaluations. They expect clear and consistent written communication. They expect everyone from line supervisors to the CEO to know about the problems of any and all workers. If an employee has a performance or attitude problem, that problem, in addition to all other efforts by the employer to help the employee, should be well documented.
In short, in employment litigation, jurors expect just about everything that almost never happens. Before demoting or firing, jurors expect an employee to receive a series of warnings, counseling/coaching sessions, training sessions, job adjustments, more warnings, more coaching, and when, and only when, everything else has failed, at least one more warning.
A juror once told me that while he thought it was unreasonable for an employer to have to work so hard and be so patient with a poorly performing employee, he found for the plaintiff because “that’s the way it should be.” It usually is quite effective for plaintiff attorneys to try to remind jurors of these high standards. An effective voir dire question goes something like, “What are some of the things that a good company could do to prevent sexual harassment on the job?” This type of question usually produces about 80 percent of the plaintiff attorney’s opening statement.
Jurors demand high standards because they believe so much is at stake. The jury experience provides for some an once-in-a-lifetime opportunity to make a difference in how people are treated on the job. Psychologically, jurors see an opportunity to make decisions that protect themselves from what seems like an unpredictable and unfair world.
Don’t Blame The Jury
Attorneys often scratch their heads when juries return verdicts that seem inconsistent with the evidence. It is reassuring to attribute these results to jurors’ cognitive deficiencies. But, in many cases, the unexpected result is due to the attorney’s failure to recognize the experiences and expectations jurors bring with them into the courtroom, and how those factors influence their perception and evaluation of the evidence. More fundamentally, attorneys tend to ignore the main reason employment cases can be so volatile. Jurors feel they have a personal and psychological stake in the outcome of the dispute.
Attorneys should not be discouraged by this reality. Instead, they should do everything possible to shape the story of their case so that it comports with jurors’ interests, concerns and expectations. When that occurs, real persuasion is possible.